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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Thursday, April 30, 2015

To sue over employment discrimination, the plaintiff needs something to sue about. The courts don't care about trivial discrimination. They want "adverse employment actions." This case tells us how it shakes out.

The case is Chung v. City University of New York, a summary order decided on March 31. Chung got a negative performance evaluation. He also grieves a series of incidents that occurred afterwards. "This latter batch of allegations can essentially be summarized as follows: (1) Plaintiff was required to perform certain low-level tasks that fall outside his job description; (2) student workers were assigned tasks for which Plaintiff was better qualified and that did fall within his job description; (3) Plaintiff was denied access to relevant computer programs, updates, and workshops; and (4) Plaintiff was excluded from, and denied notice of, at least two staff meetings and at least five meetings with student assistants."

None of this will cut it for purposes of taking the discrimination case to the jury. A negative performance review, without more, is not an adverse action unless it has a detrimental effect on the plaintiff's salary, benefits or title. Plaintiff does not claim "tangible consequences resulting from the evaluation." The other things cited by plaintiff in proving an adverse action do not represent a significant diminution in his material job duties, the Court of Appeals (Leval, Straub and Droney) says.

Plaintiff also sued for retaliation for invoking his rights under Title VII. That claim fails also. You can make out this claim if something bad happened to you after you invoked the protections of the civil rights laws. But "where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Plaintiff loses because he claims that, after filing a discrimination claim, he "was assigned demeaning work assignments further marginalizing him" at work. The Court reasons:

the specific actions alleged to have occurred after the filing of his discrimination complaint include the assignment of low-level tasks and the denial of certain opportunities that were instead afforded to student workers. These allegations are similar to the ones that pre-dated the December 2009 Notice of Claim, and, even where they differ, Plaintiff expressly characterizes them as a furtherance of the earlier discrimination. That Defendants allegedly continued reducing Plaintiff’s responsibilities and denying him access to resources and training after he filed a discrimination complaint cannot support an inference that the later-in-time actions were motivated by retaliatory intent.

Tuesday, April 28, 2015

What strikes me about the law is that the worst man on Earth may be the reason why the law changes to protect your beloved mother-in-law. We call it stare decisis, which is Latin for "the precedent applies to future cases." In this case, a sexual offender had to comply with GPS monitoring. Not so fast, the Supreme Court says.

The case is Grady v. North Carolina, decided on March 30. Grady was convicted of taking indecent liberties with a child. The trial court in his case ordered that he enroll in a monitoring program under which he would have to wear tracking devices for the rest of his life. Yet, a few years ago, the Supreme Court said in United States v. Jones that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a search" triggering Fourth Amendment analysis to determine if the search is reasonable.

Like him or hate him, the analysis in Jones applies to Grady. "The State's program is plainly designed to obtain information. And since it does so by physically intruding on a subject's body, it effects a Fourth Amendment search." This does not mean Grady wins the case. The lower court has to decide if the GPS program is unreasonable under the Fourth Amendment. The Court writes:

That conclusion, however, does not decide the ultimate question of the program’s constitutionality. The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. See, e.g., Samson v. California, 547 U. S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes was reasonable). The North Carolina courts did not examine whether the State’s monitoring program is reasonable—when properly viewed as a search—and we will not do so in the first instance.

Monday, April 27, 2015

In 2005, the Supreme Court held in the Caballes case that the police can conduct a dog sniff on your car during a traffic stop. This time around, the Court asks a follow-up question: at what point during the traffic stop is the dog sniff prohibited by the Fourth Amendment?

The case is Rodriguez v. United States, decided on April 21. The Fourth Amendment prohibits unreasonable search and seizures. You cannot resolve Fourth Amendment cases simply by reading the Fourth Amendment; it tells us very little. To answer the question, you have to read the reams of case law that interpret the Fourth Amendment. All of our Fourth Amendment jurisprudence is judge-made.

The many cases interpreting the Fourth Amendment may seem a jumble, but there is a logic to them. The Caballes ruling is a good starting point for this case, but this case is not Caballes, because the facts are different. This time around, defendant was stopped after the driver jerked his car onto the shoulder and then back into the highway. The police checked the license and registration and ran a computer check on the driver. The officer gave the driver a warning ticket. So far, so good.

Moments later, not so good for the driver. Once the traffic stop had run its course and the officer gave the driver a warning, he got out the dog and gave the car an outside sniff. Of course, this being a challenge that reached the Supreme Court, the dog smelled drugs, the police seized the drugs and the driver's life suddenly went down the chute. The dog sniff phase of the stop lasted seven or eight minutes. Was the dog sniff legal?

It was not legal, because the traffic stop had run its course and there was no probable cause or reasonable suspicion for the police to think the driver had drugs in the car. Caballes dictates the result. Writing for a 5-4 majority that included Justice Scalia, the Notorious RGB writes that "In Caballes ... we cautioned that a traffic stop can become unlawful if it is prolonged beyond the time reasonable required to complete the mission of issuing a warning ticket." In another case, the Court said that "the seizure remains lawful only so long as unrelated inquiries do not measurably extend the duration of the stop." The Court in this case summarizes the state of the law: "An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But ... he may not do so in a way that prolongs the stop, absent reasonable suspicion ordinarily demanded to justify detaining an individual."

The case is remanded to the lower courts to decide if the officer had reasonable suspicion to allow the dog to sniff the car. In dissent, Justice Thomas says there was in fact reasonable suspicion and that the defendant cannot assert any rights under the Fourth Amendment.

Thursday, April 23, 2015

This age discrimination case alleges that the plaintiff was denied a position with Rockland County after the guy conducting the job interview made age-related comments. The case was dismissed on summary judgment, and the Court of Appeals affirms.

The case is Chapothat v. County of Rockland, a summary order issued on April 1. The district court said plaintiff could not show the County's non-discriminatory reason for denying the job was a pretext for age discrimination or that age was the "but for" reason for the adverse decision. Plaintiff claims that direct evidence wins his case, but the Court of Appeals (Calabresi, Hall and Carney) is not buying it, reasoning:

As direct evidence that age related animus gave rise to the County’s decision, Chapotkat presents only Chief Operator Gonos’s comments made during his interview. According to Chapotkat, Gonos told Chapotkat that he did not “like when people in their late fifties and sixties come and they don’t stay here,” that he did not “like the process of selection,” and that he “prefer[red] someone who could stay here for a long time.” Gonos then asked Chapotkat how old he was, to which Chapotkat responded that he was 51 and that he intended to work 15 more years.

Plaintiff loses the case on summary judgment. The Court of Appeals cites authority for the proposition that the age discrimination law "aims to prevent adverse employment decisions grounded in 'inaccurate and stigmatizing stereotypes' about older workers’ 'productivity and competence.' Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). '[E]mployment decisions driven by factors that are empirically intertwined with age are not discriminatory so long as they are motivated by ‘some feature other than the employee’s age.’' Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997) (quoting Hazen Paper, 507 U.S. at 609). Thus, we have held that 'decisions motivated by economic concerns do not violate the ADEA.'”

This statement by the job-interviewer does not show the County used age as a proxy for productivity or competence. "Moreover, Chapotkat’s response to Gonos’s comments—that he planned to work 15 more years—reflects Chapotkat’s own understanding that Gonos was concerned with the length of the incoming PCS’s tenure, not with his age. Although Gonos’s comments mention age, the concern expressed is with the inefficiency of a frequently-recurring hiring process."

This decision strikes me as unusual. ADEA cases typically involve evidence that the employer does not like older people and that that negative view influence the hiring (or firing) decision. But this case requires evidence that the employer held a stereotypical view of older workers' competence or productivity. If management says that plaintiff was "too old" to work here, that admission will be enough. Or if a supervisor says he wants "fresh blood" in the workplace. But what if a hiring manager simply says he wants younger people? I once settled a case when the supervisor told the job applicant that he hired a younger guy for the position. Does that violate the ADEA? Most people would say that it does.

A few cases over the years have reversed summary judgment in ADEA cases without evidence that management had expressly held stereotypical views about older workers. In one case. D'Cunha v. Genovese/Eckerd, Corp., 479 F.3d 193 (2d Cir. 2007), the Court of Appeals vacated summary judgment on the basis of straight pretext and evidence that the defendant hired people who were younger than the plaintiff. This published decision does not cite any case law referencing stereotypes. One summary order also reversed summary judgment on the basis of pretext-only, without evidence of stereotypes. See, Medeiros v. Pratt & Whitney Power Systems, 272 Fed.Appx. 78 (2d Cir. 2008).

A quick Lexis search shows that the "stigmatizing stereotypes" theory has been applied in the Court of Appeals on few occasions, including the Criley decision cited in this case. This interpretation has been off the radar all these years. Is the Court of Appeals reviving it?

Wednesday, April 22, 2015

This case tells us that there is no getting around a bad performance record when you are suing for employment discrimination.

The case is Wright v. City of Syracuse, a summary order issued on April 16. The Court of Appeals summarizes the plaintiff's work history:

During the course of Wright’s employment, the City subjected him to official discipline on several occasions. For instance, between 1993 and 2007, Wright was suspended eight times for a variety of infractions, including reporting late and failing to report for work, fighting with and threatening co-workers, insubordination, and theft of City property. In January 2009, Wrigtht was terminated for another incident of insubordination, in which he was accused of acting belligerent and threatening to a supervisor. The City, however, entered into a settlement agreement with Local 400 to permit Wright to continue working. Finally, in February 2010, Wright was detained by the police after attempting to turn in scrap metal belonging to the City to a commercial recycling facility. For this offense, Wright’s employment was terminated.

This case is a summary order, so we don't know how plaintiff claimed his termination resulted from racial discrimination.The Court of Appeals (Cabranes, Sack and Lynch) doesn't see it, either. The Second Circuit says plaintiff cannot make out a prima facie case of discrimination because no reasonable jury would find he was terminated under circumstances creating an inference of racial discrimination. While plaintiff also claims retaliation for asserting his rights under the civil rights laws, the same analysis applies. No inference of retaliatory intent. Nor is there a hostile work environment claim.

The district court ruling sheds light on plaintiff's arguments. On the hostile work environment claim, the trial court wrote, "Plaintiff testified that he felt his employment environment was hostile
because nobody on his crew liked him nor would they communicate with
him, despite the fact that they never made any racial comments to him. Plaintiff further testified that he felt like he was
walking on egg shells at work because he feared being disciplined for
things that other people were not disciplined for, and that despite
being a victim when a white employee lifted his leg up behind
Plaintiff's head and when another employee patted his butt, Plaintiff
was still disciplined." This was not enough to avoid summary judgment.

On the discriminatory discharge claim, the trial court wrote, "Plaintiff has not identified any evidence of discriminatory or
retaliatory animus based on his race as it relates to his termination.
The sole question of fact Plaintiff identifies, which is whether Nolan
stated in 2007 that no black man would get promoted on his watch, is
irrelevant to Plaintiff's termination. The evidence reflects that
Defendant O'Connor, who was Commissioner at the time, made the decision
to terminate Plaintiff. Even assuming that Defendants Thompson and
Simone advised or encouraged O'Connor to terminate Plaintiff, there is
no evidence of racial animus or bias on behalf of O'Connor, Thompson or Simone against Plaintiff."

Tuesday, April 21, 2015

After the police began harassing Joanne Smith (by following her around and "spooking her"), bad blood between Smith and her family ensued with the police, resulting in traffic tickets filed against Smith. The evidence suggests these tickets were issued in retaliation for complaints that Smith and her family made against the officer, including complaints made to the State Police. The tickets were dismissed, and Smith and her son-in-law sued for an unlawful seizure and retaliatory prosecution. The first claim survives, the second does not.

The case is Smith v. Campbell, decided on April 1. Son-in-law Lilly testified that Campbell had constructively seized her outside her house on when Campbell and another officer surrounded him and blocked his egress when he showed up to defend his mother-in-law's honor. For some reason, Lilly's complaint did not plead this claim under Section 1983, the federal civil rights law that enforces the Fourth Amendment and other constitutional provisions. While the trial court tossed that claim on its rear-end for failure to cite Section 1983, the Second Circuit (Calabresi, Hall and Rakoff [D.J.]) reinstates the claim under recent Supreme Court authority, Johnson v. City of Shelby (2014), which said the claim must proceed if the facts support it, even if the legal theory for relief is imperfectly stated. So, good news for Lilly.

But bad news for Smith, who suffered the police harassment. To win a retaliatory harassment case, you have to prove the officer's actions were substantially motivated by plaintiff's exercise of her First Amendment rights, causing some injury. Smith did complain about the officer's conduct, and the officer's appearance at her house with the tickets shortly after her complaints satisfies the causation requirement. But since this all happened on November 26, 2007, more than three years before Smith filed suit, the case is time-barred.

Smith tries to save the claim by arguing that the statute of limitations did not accrue until the tickets against her were dismissed. She did not know how the criminal case would work out when the police gave her the retaliatory tickets. That argument will work on a malicious prosecution claim, but Smith does not sue on that theory. "Not every Section 1983 claim that arises out of a criminal case requires that the underlying criminal process reach a favorable termination. ... First Amendment claims, even those arising out of the same series of events that give rise to Fourth Amendment claims, do not require a favorable termination in the criminal action to be cognizable as a matter of law."

In other words, in a case like this, the statute of limitations accrues when the police commit the retaliatory action, not when the local criminal court throws out the charge. This means that you can have a claim for retaliatory arrest even if you are actually guilty of the offense that the police charge you with out of retaliation for exercising your First Amendment rights. Don't wait to be exonerated in criminal court if you want to sue the police. Sue them today.

Thursday, April 16, 2015

The jury ruled for the plaintiff in this excessive force case against a Nassau County police officer. The officer then sought judgment as a matter of law (which would vacate the verdict) on qualified immunity grounds, arguing that "Officer Rogich is entitled to ... qualified immunity when his version of events is credited." The district court denied the motion and the officer took up an appeal before the court could even award damages. The appeal is dismissed because the officer is not allowed to pursue an appeal like this.

The case is Taylor v. Rogich, decided on March 30. Normally, you cannot appeal a district court ruling or verdict until all issues in the district court are resolved, including damages. An exception to that rule applies when the officer seeks qualified immunity, which shields him from suit if his actions were objectively reasonable. But even that exception has exceptions. You cannot take up an interlocutory appeal "to the extent that the denial [of qualified immunity] involves only a question of evidence sufficiency," i.e., the jury can see it my way and not the officer's way. That rule applies in the summary judgment world, and the Court of Appeals extends it to post-trial appeals under Rule 50.

The exception to the exception applies here. The officer's appeal is premature because he frames the issue as a factual dispute on the evidence that the jury was not entitled to (and did not) adopt. The Court of Appeals ruling does not tell us what happened in this case, but this comes from the district's post-trial ruling:

On September 26, 2009, Rogich, a member of the Bureau of Special Operations (BSO), participated in the arrest of the defendant. Prior to the arrest, Rogich had been advised that plaintiff was wanted on a parole warrant and for questioning in connection with a homicide, and that he might be armed and had threatened his parole officer. Immediately prior to the arrest, a group of BSO officers, driving unmarked vehicles, surrounded plaintiff’s vehicle as he was leaving a residence in Hempstead, NY. Rogich and his partner were in a silver Jeep Grand Cherokee SUV which pulled in front of plaintiff’s vehicle when plaintiff had stopped at a stop sign. It was undisputed at trial that Rogich fired three shots at plaintiff. Each time, he aimed for “center mass,” meaning the plaintiff’s chest. All three struck plaintiff’s vehicle; one passed through the windshield and struck plaintiff in the stomach. The third shot fired lodged in the passenger door of plaintiff’s vehicle.

While "Plaintiff testified that while he was stopped at the stop sign, the defendant fired the first shot while still inside the SUV," the officer "testified he got out of the Jeep before firing his weapon. He further testified that, once he was in front of plaintiff’s car, the plaintiff had backed up and 'charged' toward him. As such, Rogich testified, he fired because he believed it was 'the only way I could stop the car from running me over.'” Each side had some corroborating witnesses, but that is the conflicting evidence that underscored the officer's appeal.

Title VII expressly excludes American Indian tribes from its definition of covered employers. 42 U.S.C. § 2000e(b). The exclusion extends to the arms and agencies of an American Indian tribe. Because the defendant here is a corporation owned by an agency of a federally recognized American Indian tribe, it is not an employer under Title VII.

The Age Discrimination in Employment Act does not exclude Indian reservations from its coverage. But the casinos are exempt from ADEA coverage as well "as a matter of federal common law." The Court of Appeals (Pooler, Carney and Gleeson [D.J.]) says that "an Indian tribe enjoys sovereign immunity from suit except where ‘Congress has authorized the suit or the tribe has waived its immunity.” In addition, "Agencies of a tribe enjoy the same presumption of immunity in a suit for damages."

Tremblay handled the appeal pro se, so either no lawyer wanted to touch it or some lawyer actually knew about these coverage exemptions. I wonder if she has any recourse under any other statutes, but she gets none under Title VII and the ADEA. If you want to see what a pro se appellate brief looks like, click here. According to the brief filed by Mohegan Sun, "As the District Court properly noted, the forum for raising this claim was in the Mohegan Gaming Disputes Court."

Friday, April 10, 2015

The Court of Appeals has vacated a $200,000 jury award in a discrimination case brought against the Nassau County Sheriff's Department, ruling that plaintiff could not prevail on an implied contract theory of discrimination.

The case is Saeed v. Kreutz, a summary order decided on April 3. I represented the plaintiff on appeal. The jury heard evidence that Saeed, who worked in the Sheriff's Department, was subjected to anti-gay and racist comments from fellow law enforcement officers, including his Sergeant. The jury had two sets of claims before it: (1) implied contract arising from the County's EEO policy, which prohibited discrimination and (2) federal and state antidiscrimination statutory violations, including Title VII. The jury ruled in plaintiff's favor on the contract theory but rejected his federal and state discrimination claims. The County appealed from the contract verdict and plaintiff cross-appealed, arguing that the verdict was inconsistent because the favorable verdict on the contract claim meant that defendants also violated Title VII.

The Court of Appeals (Jacobs, Lohier and Geraci [D.J.]) vacates the contract verdict and denies the cross appeal. On the contract claim, the Court ruled, "The district court erred in submitting the implied contract claim to the jury. That claim rests on the theory that the Department and the County were bound--as a matter of contract--to the terms of the County’s Equal Employment Opportunity Policy. But under New York law, '[a] contract cannot be implied in fact where there is an express contract covering the subject matter involved.'” The express contract was the Collective Bargaining Agreement, which contained an anti-discrimination clause. "Because the CBA and the alleged implied-in-fact contract concerned the same subject matter--i.e., the terms and conditions of employment--the implied contract claim fails as a matter of law."

The cross-appeal for a new trial is also rejected. The verdict was not inconsistent, the Court of Appeals says. "The verdicts were not irreconcilably inconsistent. The jury was instructed that Saeed should prevail on the implied contract claim if defendants 'breached the contract by discriminating against the plaintiff or treating the plaintiff unfairly.' The jury could have understood this instruction to mean that defendants had a contractual obligation to treat Saeed 'fairly' that was not based on any obligation to abstain from discrimination and retaliation. If the jury interpreted the instruction this way, it could have found for Saeed on the implied contract claim without also finding for him on the statutory claims."

Thursday, April 9, 2015

When does a non-party subpoena go too far? And when does it implicate First Amendment values? In this case, a federal court quashed non-party subpoenas served on community activists in connection with a developer's civil rights lawsuit against an upstate New York community.

The case is Bloomingburg Jewish Center v. Village of Bloomingburg, decided on April 6. The plaintiffs argue that certain development projects were rejected because the Town and Village acquiesced in alleged anti-Hasidic sentiment in the community. Plaintiff served non-party subpoenas on community activists for records and other communications among themselves and public officials to help prove the case. Judge Forrest quashed the subpoenas as to the non-party activists. I represented one of the activists, Weinstein, who filed the motion to quash along with other non-parties.

Here is how the court summarizes the dispute:

Plaintiffs allege that defendants, along with a number of individuals from the community, have engaged in a consistent pattern of religious discrimination and undertaken actions to thwart plaintiffs’ planned developments. Important to the subpoenas at issue on this motion is that plaintiffs assert that the RCC, and individuals associated with the RCC, form a vocal core of the opposition to their development efforts. Plaintiffs assert that the RCC has proposed and worked for the election of candidates sympathetic to the anti-development position (which, according to plaintiffs, is based on an anti-Semitic and anti-Hasidic views).

The demands were wide-ranging. Here is a flavor:

Request No. 1: All documents and communications on any topic at all, with a variety of representatives, employees, or agents of the Town of Mamakating (the “Town”) or the Village.

Request No. 3: All documents and communications on any topic at all, with any person affiliated with the RCC, the Rural Heritage Party, Hoppe, Weinstein, Persaud, or David Berg.

Request No. 4: All documents and communications on any topic at all concerning the RCC and the Rural Heritage Party.

Request No. 5: All documents and communications concerning any actions taken or statements made by any defendant or any employee, official, or representative of the Village or Town concerning Hasidic Jews, plaintiffs or their affiliates, or that might lead to the discovery of evidence of disparate treatment.

Request No. 6: All documents and communications concerning any complaints made in connection with plaintiffs’ proposed developments, or any property thought to be associated with Shalom Lamm, Kenneth Nakdimen, and/or any Hasidic person in the Village or Town.

Request No. 7: All documents and communications concerning any complaints made in connection with any other property than those referenced in No. 6 above.

The subpoenas are premature, overbroad and implicate First Amendment concerns. They are premature because plaintiff might get similar information from public officials before burdening non-parties with these demands. They are overbroad for a variety of reasons, including the fact that the demands seek information that may be unrelated to the disputes in this case. As the court writes, "It is unfair to suggest that emails that could relate to nothing more than a birthday party but that involves one of the identified people would become discoverable material in this lawsuit. Similarly, a complaint regarding snow-plowing down Main Street would likewise be discoverable. This asks too much of third parties. They implicate the First Amendment because the demands may chill activist speech." The First Amendment is also implicated, Judge Forrest, writes:

In practice, rights guaranteed by the First Amendment enable people to hold diverse political and religious views, to voice their opposition to the views and beliefs of others in written and spoken communication, and to seek to elect those whom they believe will represent their views—even when those views are not shared and sometimes condemned by others.

Tuesday, April 7, 2015

I doubt Congress thought about this when it enacted the Civil Rights Act of 1964, but the courts have determined that something you say in lawsuit number 1 cannot be contradicted by what you say in lawsuit number 2, especially if the contradictions would make a difference in the outcome. We call it "judicial estoppel."

The case is Robinson v. Concentra Health Services, decided on March 24. After plaintiff was fired, she put in for disability benefits, claiming that multiple sclerosis made it impossible for her to work. She then filed a lawsuit claiming her termination was discriminatory. What do we do about this?

Under the civil rights laws, you make out a prima facie case in part by showing you were qualified for the position. Under the rules governing Social Security disability benefits, a claimant must show she cannot engage in substantial gainful activity for medical reasons. Here is how the Court of Appeals (Parker, Hall and Lohier) frames the issue:

At issue in this case is whether Robinson’s application for, and receipt of, Social Security disability benefits on the ground that she is fully disabled due to multiple sclerosis, renders her unable to make a prima facie showing that she was qualified for the position she held at the time of termination. At the summary judgment stage, a plaintiff may satisfy this burden by showing that she “possesses the basic skills necessary for performance of [the] job.”

Plaintiff loses the case. Under judicial estoppel, you cannot assert a factual position in a legal proceeding that contradicts a position taken in a prior legal proceeding. "A party invoking judicial estoppel must show that (1) the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding and (2) that position was adopted by the first tribunal in some manner, such as by rendering a favorable judgment.” Under Supreme Court authority,

a successful disability application does not automatically preclude a later claim under the ADA, because a representation of complete disability in a Social Security proceeding is not necessarily contradicted by the same person’s ADA claim that he could perform essential job functions with reasonable accommodation where the former proceeding did not consider the effect that reasonable workplace accommodations would have on the claimant’s ability to work. Nevertheless, the Court acknowledged that an “ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier . . . total disability claim,” and held that in such circumstances, a plaintiff “must proffer a sufficient explanation” for the conflicting statements in order to survive summary judgment.

That logic applies in non ADA claims. While plaintiff argues that the district court merely assumed that she told the Administrative Law Judge that she was totally disabled from working, the ALJ's decision summarized her position in seeking SSD benefits. Plaintiff also does not deny that she previous told the SSA and ALJ that she was fully disabled as of June 2010. three months before she was terminated. And she does not "deny that such a statement is inconsistent with her current litigation position." Indeed, "Robinson’s job as a medical assistant required her to work in both the ‘front’ at the reception desk and in the ‘back’ performing tasks like drug tests and assisting doctors with suturing, which she could not complete if she were fully disabled." The Second Circuit wraps it up thusly:

Although Robinson may have continued to work at Concentra until September 2010, this fact demonstrates only that her statements to the SSA and the ALJ may have been false, but does not sufficiently explain the contradiction between the statements and her current litigation position.

Monday, April 6, 2015

After the Supreme Court in 1976 issued a notorious Title VII ruling that denied rights to certain pregnant plaintiffs, Congress two years later enacted the Pregnancy Discrimination Act, which said you cannot discriminate against pregnant woman in the workplace. The Supreme Court has not had much occasion to interpret the PDA. It did so this term.

The case is Young v. United Parcel Service, decided on March 25. Young was a UPS driver who got pregnant and was unable to lift heavy packages. UPS told Young she could not work while under a lifting restriction. But her male co-workers were given light duty assignments for on-the-job injuries. She sued under the PDA, which includes this language:

women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.

Congress in 1978 may have gotten on the stick in amending Title VII to protect pregnant woman, but this clause is particularly clunky and needs to be read at least 6 or 7 times to fully understand its meaning. Even then, it's not clear. That is why this case reached the Supreme Court. Writing for the Court, Justice Breyer reviews the interpretations offered by all sides. He rejects those interpretations and says the traditional McDonnell-Douglas burden-shifting model applies in determining whether an employer failed to reasonably accommodate pregnant women. Here is the evidentiary model now governing these claims:

If plaintiff shows that the employer did not accommodate her, and that management did accommodate others "similar in their ability or inability to work," the employer than has to articulate a neutral reason for this disparate treatment. "But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ('similar in their ability or inability to work') whom the employer accommodates." Plaintiff must then show that the employer's proffered reasons are a pretext. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination."

In the end, the 6-3 majority says, "The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers."

This evidentiary model applies McDonnell-Douglas in the context of pregnancy. That's why some of the factors here are unique to pregnancy and accommodations. Sort of like importing the Americans with Disabilities Act's reasonable accommodation framework into Title VII. As anyone who handles ADA cases can tell you, reasonable accommodations cases are more complicated than wrongful discharge cases under Title VII, primarily because of that accommodation angle. Under the new framework adopted by the Supreme Court in this case, summary judgment for UPS is vacated and the case is remanded for the Fourth Circuit to worry about it.

Friday, April 3, 2015

Non-lawyers sometimes think the jury pool will look like them, but often that is not the case. What you get is jurors who don't know the parties or the lawyers, who can swear they can be fair and impartial. There are ways to challenge jury selection, but it's not easy. The plaintiff failed in this case.

The case is DeVorce v. Phillips, a summary order decided on March 25. This is a habeas corpus action. Plaintiff was found guilty of God knows what crime. At jury selection in state court, the prosecution tried to exclude a black juror, resulting in a challenge rate of 3 out of 7 jurors, or 42.8 percent. Five of the 26 prospective jurors were black, a 19.2 percent ratio. While the trial court could have ruled that DeVorce made out a prima facie case of jury selection discrimination, it was not required to do so, the Court of Appeals (Jacobs, Lohier and Geraci [D.J.]) says. Besides, the Second Circuit says, there is not enough information in the record to really know if the jury process was infected by racism. We don't know the composition of the entire jury venire, or a clear indication of which strikes were challenged and on what ground.

DeVorce did make a Batson challenge at the criminal trial. The Supreme Court's Batson case prohibits the removal of black jurors for racial reasons. If the prosecutor tries to exclude a black juror and cannot give a race-neutral reason, then the challenge is rejected, and the defendant has a potential issue on appeal. When the prosecutor tried to remove a black juror, he said it was because (1) she was a Jehovah's Witness; (2) she was not comfortable sitting in judgement of someone else and (3) she lived in Mount Vernon. The Mount Vernon answer sounds suspicious to me, but the prosecutor got away with this based on excuse number (2). As the trial court has broad discretion to assess prosecutor credibility in Batson challenges, this habeas challenge fails, and DeVorce remains in jail.